Appeal No. 2004-1202
Application No. 09/908,938
We cannot sustain the rejection of claims 1, 4 through 6, 9
through 11, 14 through 17, 20, 21, 27 through 30, 36, 37, and 40
under 35 U.S.C. § 102(b) as being anticipated by Frykberg.
Akin to the circumstance with the first rejection, supra,
the examiner considers independent claims 1, 17, 29, and 30 to be
readable on the healing sandal disclosed by Frykberg (Figs. 1 and
2). However, as was the case above, the examiner has chosen as
evidence of anticipation a patent which does not mention any
difference in flexibility between an upper flap and a lower flap.
In fact, as pointed out by appellant (reply brief, page 8), and
contrary to the examiner’s finding (answer, page 7), the Frykberg
reference does not even indicate the material of the strap 14
(upper flap). Thus, it is without question but that it would be
pure speculation as to whether the strap 14 of Frykberg is more
flexible than the side panel 40 (lower flap). Since, as
indicated, the examiner has not applied a sound reference that
appellant’s independent claims read on, we are constrained to
reverse this anticipation rejection.
In summary, this panel of the board has not sustained the
two rejections on appeal.
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